Homeland Security: Not Searching Your Laptop Doesn't Benefit Your Civil Liberties, So We Can Do It

from the interesting-4th-amendment-interpretation dept

We've written many times over the years concerning the legality of Homeland Security searching your laptop at the border without reasonable suspicion. Many courts have held that, effectively, the 4th Amendment does not apply at the border, so they don't need a warrant to search your laptop. However, they've been continually pushing this ability further and further. For example, they got a court to say that this applies not just while you're at the border -- they can take your laptop off site to search it and hang onto it for a while. However, that time, they at least needed to have a "reasonable suspicion." DHS has taken a pretty firm stand that it must be able to keep doing this. While the ACLU and the EFF and others keep challenging these rules, to date the only possible crack was in a case where there's evidence that the search was politically motivated.

Late last week, a bizarre finding popped up. Back in 2009, when DHS announced its new rules for laptop searches at the border, it also promised that it would do its own "Civil Liberties Impact Assessment" within 120 days. Three years later, Homeland Security's Orwellian "Office of Civil Rights and Civil Liberties" has finally released a two page executive summary of the findings, which more or less says "there are no civil liberties issues" with laptop searches. What else would you expect them to say? The ACLU has filed a FOIA request for the full report, but let's just focus on the most horrifying statement in the executive summary:

We conclude that CBP's and ICE's current border search policies comply with the Fourth Amendment. We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.

That statement is so bizarre I read it half a dozen times before I was sure it really said what it appears to say. It appears to be a somewhat stunning redefinition of how one reviews whether or not something violates the 4th Amendment. Rather than recognizing the rather explicit restrictions under the 4th Amendment, they merely say that it is okay to do these searches because not doing them would not have civil rights/civil liberties "benefits." That is incredible. The double negative logic there is truly amazing. In other words, we can violate the Constitution, so long as not doing so would not have civil liberties benefits. Wow.

Meanwhile, since Homeland Security has similarly argued (as part of these cases) that its Constitution Free zone for searches applies to any place 100 miles from the United States border, some are pointing out that this means that every electronic device -- computers, cell phones, you name it -- in Detroit can be searched with absolutely no reasonable suspicion under DHS's interpretation (since Detroit is less than 100 miles from Canada). But don't worry, since there is little civil liberties or civil rights benefits to not searching your stuff, DHS says it's okay.

Oh, and in case you're wondering on what basis DHS makes this assessment, it appears to be based on their own directives rather than on any "laws."

So, if you're playing along at home, DHS has decided, based on its own review of its own directives, that it can search any electronic device within 100 miles of the border without requiring a warrant, probable cause, reasonable suspicion or anything like that -- because actually respecting the Constitution "would be operationally harmful" and wouldn't really create any "civil rights/civil liberties benefits" for you.

Re: Like I said before...

Precisely. I've been making this argument for years. The Constitution defines our government (and, therefore, our nation as a political entity). Without the Constitution, the government has no authority whatsoever. Constitution-free areas such as "the border" or even things like "free speech zones", are by all rights areas of anarchy where there is no legitimate law at all.

Re: Like I said before...

The problem is that if some major plot that could kill thousands went undetected because some border agent didn't skim through a suspicious person's laptop then the entire country would be looking for a human sacrifice. Can't win for losing. Welcome to the wonderful USA.

Re: Re:

Not just Detroit,

but NYC, LA, San Fran, Seattle, Portland, New Orleans, the entire state of Florida, etc. all lie within 100 miles of the border... The good news is that only impacts 2/3 of the US civilian population. Wait. HOLY FUCKING SHITBALLS!

Re: Re: Not just Detroit,

Re: Re: Re: Not just Detroit,

Or I am sure, cell phone, tablet...

Glad I live very far from any borders, not that I expect that to stop them. However, the encrypted drive might, at least slow them down a bit, until they can put Titan, Sequoia, or some other government super computer to work on it.

Won't they be surprised when all they find is a recipe for Fruit Cake.

Re: Re: Re: Re: Not just Detroit,

Why would they go to such lengths?http://xkcd.com/538/
They just need to break some fingers. Remember the constitution is not in effect and the US has a long history of ignoring the rules regarding...
Funny, trying to come up with the word torture and all that popped into my head was terrorism. Funny how those things happen...

It's worse than you think. Customs authority covers any area within 100 miles of a point of entry to the US. This includes international airports!
When you plot 100 mile radius circles around every international airport in the US, and any area within 100 miles of a border, you find that 90% of the United States is now an area where the constitution no longer applies.

Re:

Re:

Exactly that! This is tantamount to saying "Since you're receiving no demonstrable benefit from the fact that Joe isn't punching you in the head, clearly there's no harm in Joe punching you in the head." It's like a pretzel fallacy.

Can Customs arrest you for having dirty pictures?, pornography?, Child Porn?, Documents in Russian and classified by the Russian government? Non US financial transactions in which you did not pay the appropriate US tax?, Non US financial transactions in which you did not pay the appropriate foreign government tax?

Re: Re:

Benefit?

If I had to guess, then I'd guess that the only "benefit" gained from laptop search is in the form of industrial espionage on behalf of some Corporation A (i.e., for A's benefit) at the expense of some other Corporation B.

Perhaps this is done "patriotically," where A is from good ol' USA and B is some foreigner. Or perhaps there is some other method of quid pro quo. I don't suppose we'll ever know until after the end of the permanent war.

Re:

When they stop you at "inner" border check points. They can arrest you for being in the country illegally, illegal alien transport or firearms and explosives. They can have you arrested by local law enforcement for drugs or driving impaired, so I would assume if they find some reason to believe you have illegal content on your laptop/phone ect. they can also have you arrested for that. Look around on you tube at some of the liberties these "public servants" take with their numbers and weapons. All it takes is a cross word on your part and suddenly you will need to be more fully searched. They will invent whatever "probable cause" they need.

Re:

Not really, they'd just throw each in an evidence bag and (maybe?) give you a receipt that they confiscated it for thorough examination, they'll mail it back in 3 months if it checks out fine. Hopefully the mail doesn't lose it though.

Friendly nation...

I guess the US doesn't like visitors much. I for one won't be going back and spending my tourist dollars there until they stop being so f**king stupid and pretend to be a free country again.
If the rest of the world is really lucky the US will tank their own economy and fail to recover. Sure that'll f*ck up the rest of the world for a while too, but even that and afterwards China being the world's leading economy and super power would be better at this stage.

Re: Friendly nation...

Well it's just like theft guys. If people didn't steal stuff from you, they would deprive you of your property ownership benefits. Therefore they should steal stuff from you otherwise you wouldn't have those benefits. Duh.

Absolutely Not

You are not the arbiters of the arrangement of bits! If you can't point to something that is physically among my belongings and say "that is in violation of customs" while I am in the designated customs processing zone, you have no cause to delay me or my possessions.

Rather than recognizing the rather explicit restrictions under the 4th Amendment, they merely say that it is okay to do these searches because not doing them would not have civil rights/civil liberties "benefits." That is incredible. The double negative logic there is truly amazing. In other words, we can violate the Constitution, so long as not doing so would not have civil liberties benefits. Wow.

Mike--

Wow indeed. Your inability to reason is amusing. As you indicated earlier in your post, the Fourth Amendment does not apply at the border ("Many courts have held that, effectively, the 4th Amendment does not apply at the border"). Thus, they are not "violat[ing] the Constitution" at the border since they can't be violating rights that people don't have. I know your extremist zealotry doesn't permit you to see obvious truths. I can't help you with that. You'd have to start by pulling your head out of your ass and by thinking logically. I know. I know. You can't do that.

Re:

So you think it is reasonable that the Fourth Amendment doesn't apply to the vast majority of US citizens who never cross a border? If so, why be dishonest about it? You should be agitating to have the amendment repealed.

Re: Re:

Just because they tell you the constitution is holding up the gov't/sky doesn't make it so. Governments authorities are based on having the power needed to enforce their whims on people. The constitution may have been key in convincing people to give them that power in the first place but that doesn't neccessarily mean it's essential to hold onto it.

Re: Re: Re:

I believe the fact that the Supreme Court has stated, time and time again, that the Constitution trumps all laws (save amendments) that the government makes, it *IS* the thing that holds up the government.

Granted, there are times that I think the Supreme Court has its head up its ass, but that's neither here nor now.

Re: Re: Re: Re:

I find these two parts really chilling .... who determined that first amendment rights are not being violated ... why we did of course. We know what's best for you.

First Amendment
Some critics argue that a heightened level of suspicion should be required before officers search
laptop computers in order to avoid chilling First Amendment rights. However, we conclude that
the laptop border searches allowed under the ICE and CBP Directives do not violate travelersí
First Amendment rights.

Then this astounding deduction ... even though they have caused people to miss flights and in some cases detained people on the side of the road for hours they don't feel that any time restraints need to be applied.

Time Limits and Privileged Materials
Current policies ensure reasonable efforts at promptness and, accordingly, we do not believe that
setting specific time limits is necessary. We also find that the 2009 ICE and CBP Directives
appropriately address the need to take special precautions when dealing with sensitive
information, such as attorney-client materials, attorney work product, business information, trade
secrets, and medical records. Additional safeguards are not needed

Re: Re: Re:

I understand your point, but I counter with this: the United States is defined by, and only exists because of, the Constitution. If the Constitution doesn't apply, that doesn't mean there will be no ruling authorities -- point of the gun and all that.

It does, however, mean that the ruling authority is not the US, even if it claims that it is. It would be just a group of very well-armed thugs, no different than any other group of well-armed thugs.

Re: Re:

True in theory their JUST power derives from the constitution and the will of their employers the American people. Unfortunately at these inland border checks they will normally outnumber you at better than 30 to 1 and they do have fully automatic weapons. So whatever law they pretend to follow while you are there it is important to your health to also pretend to follow it. However videoing them is perfectly legal and has been tested in the Supreme Court. Get a dash cam and use it anytime you are stopped. They are pretty cheap these days.

Re:

It's amusing how, as a lawyer wannabe (which is what you are until you become an official lawyer), you can quote something and not comprehend it. If it doesn't apply at the border, why is it not applying 100 miles AWAY FROM THE BORDER? There's one person here who needs to pull their head out of their ass and that's you AJ.

It's too bad you don't spend as much time, you know, doing something product as insulting Mike. You might actually become a beneficial member of society if you did that.

Re:

Troll much? As was pointed out up above, if you can throw out one part of the Constitution at the border, then the whole Constitution is meaningless. And if that's the case, then DHS and all Federal agents have no authority since the very document that grants the Federal government it's legitamacy is invalid.

You can't just pick and chose what parts of the Constitution you want to uphold. It's all or nothing. And if it's nothing, then the Federal government has no authority.

You seem to be the one with his head up his ass, unable to think logically.

Re:

> Many courts have held that, effectively, the
> 4th Amendment does not apply at the border".
> Thus, they are not "violat[ing] the Constitution"
> at the border since they can't be violating
> rights that people don't have.

Except the Constitution itself has no such 'at the border' exception for the Bill of Rights, so basically this is just a bunch of guys in black robes ignoring the law to suit the aims of the government.

If they ruled tomorrow that people have no right to worship as they please, never mind what the 1st Amendment actually says, that wouldn't make them right. It would just make them corrupt.

Re: Soviet Union border zone was tens of kilometers

Not the same, the Soviet border was to prevent people leaving, and was largely unpopulated, not as a means of enabling searches of citizens. The soviets were not worried about smuggling or illegal immigration, just that if the borders were easy to cross they would have no one left to rule.

I'd like to see someone in Washington (or California) arrested by the DEA for legally selling marijuana as far as Washington is concerned use this as their defense:
The defendant was within 100 miles of the border and since the DHS has stated that there are no 4th Amendment rights within 100 miles of the border, there is therefore no Constitution at all within 100 miles of the border. Therefore the State of Washington's constitution is the supreme law of the area where the defendent was selling marijuana, and since it is legal in Washingon to sell marijuana under certain conditions, the defendant has broken no laws.

They also refused to release the full text

Something mentioned but surprisingly not elaborated upon: ACLU had to file a FOIA to get the full text (this was mentioned) because DHS arbitrarily determined that something which directly affects the public's constitutional rights is confidential and to be withheld from public scrutiny.

The details for how they determined these searches are legal is being kept secret.
This is extremely disturbing.

I had to deal with this...

A couple of years ago I took my wife and then 4 year-old daughter on vacation to South Padre Island for a week. Despite having never left the country, on the way back we had to drive through a US Border Patrol checkpoint setup on the main highway back to Houston from Brownsville... 75 miles north of the border. The check wasn't terribly invasive. They didn't even ask to get out of the car or see our IDs. They just asked us if we were US Citizens and had a drug dog sniff our tires and since we obviously weren't Hispanic they took our word for it and waved us through. Still, I was a little pissed at the time.

Re: I had to deal with this...

Oh, you're talking about the Falfurrias checkpoint I believe. I live in South Texas and know the one you mean. I don't have to go anywhere near it to get to South Padre, but if you want to leave the Valley (as the Rio Grande Valley is known to us locals) and head up to San Antonio or anywhere north you have to pass it.

As for your specific stop, that's par for the course. I am Hispanic, and have traveled with friends/family who were VERY obviously Hispanic, they usually just ask if everyone is a U.S. citizen and have a drug dog sniff around the vehicle. Then wave you through. If it's extremely busy, traffic wise, they literally wave people through, unless you look "suspicious".

There's another similar checkpoint on the "back roads" (even though it's not really a back road) to Laredo. Forget the name of the city it's in. Except that one is smaller. The one in Falfurrias is way bigger and has more agents working there.

Re: Re: I had to deal with this...

It was on somewhere along US HWY 77 in stretch of the middle of nowhere north of the US HWY 100 intersection. The thing was it wasn't there on the weekend we went down there. Only on the way back so we didn't expect it. I remember saying at the time that I could understand it AT THE BORDER, but WTF are they doing 75 miles north of it? Are they just lost or something?

Okay, this is downright disturbing...

I knew that the DHS and their unique interpretations of the Constitution were slowly encroaching on our rights, but 100 miles in from the border? Wow. Just...... Wow.

Now, from an optimistic POV, the chances that the DHS would actually try and use their "all ur electronics belong 2 us" legalese logic are probably 0.0000000001% to zero. However, the cynic in me says that this new option will be close to the top five options Homeland Security is willing to use at the drop of a hat.

As the Zen Master says, "We'll see."

Also, having DHS's internal office doing the "Civil Liberties Impact Assessment"? The phrase "fox guarding the henhouse" fits this scenario to the letter.

Has anyone taken them to court over this? How can thye arbitrarily just decide 100 miles. 1-5 miles maybe I could understand, but even then ONLY for people who they believe have trespassed and are not American citizens. But 100 miles, and for virtually everyone? Come on...Is US a banana republic now?

Re:

I think the rational behind it is to give them the jurisdiction to set up checkpoints on the major highways a good ways inland so that they can catch people who cross the border illegally at unpopulated points to bypass the checkpoints when they attempt to travel freely inside the country along with everyone else.

It was on somewhere along US HWY 77 in stretch of the middle of nowhere north of the US HWY 100 intersection. The thing was it wasn't there on the weekend we went down there. Only on the way back so we didn't expect it. I remember saying at the time that I could understand it AT THE BORDER, but WTF are they doing 75 miles north of it? Are they just lost or something?

Wrong people doing the 'assessment'

Asking the DHS to do a "Civil Liberties Impact Assessment" on itself is the same as asking the cigarette companies to do a "Health and Safety Impact Assessment" on their product, and does anyone remember how that one went?

Constitution Yes or No

OK, so the question is: Does the Constitution of the United States of America exist (consensus say yes) or it is void within 100 miles of the border or anything resembling a boarder (Iowa International Airport)?

Both cannot exist.

So the real question comes up. Do we ignore the rules made under the auspices of a Constitution that are now void due to we don't actually have a Constitution that covers 100% of American Citizens/Residents? (Does the court exist that might actually see this?).

OR

Well I guess the alternative is to lay down before the MAN and cower in fear and adulation (isn't that what they want?) so we can continue to exist in this free society...(sorry for the non sequitur but I thought that is what we are/were/should be).

DHS is anti-American

So the fact that Civil Liberties are in and of themselves a benefit, is irrelevant? It won't benefit (us) our civil liberties to not violate the constitution? It won't benefit us for our rights not to be violated. So not being violated is not a benefit?